EPA clarifies permitting process on tribal lands

Tribal economies could see a boost with a new rule that makes it easier — and possibly timelier — for some industrial facilities to obtain permits to do business on American Indian reservations.

The rule that goes into effect in late August covers permits for large and small emissions sources in Indian Country. The U.S. Environmental Protection Agency outlined the rule earlier this year.

“In the past, sources may have avoided Indian Country because of uncertainty in the permitting process,” said Janet McCabe, deputy administrator for the EPA’s Office of Air and Radiation. “In other cases, states may have been issuing permits for areas of Indian Country, or sources may have been bypassing permitting altogether.”

EPA previously had a rule for large sources of emissions in areas that meet national air quality standards.

But there was no permitting process for large facilities, such as power plants and cement plants that emit more than 100 tons of pollutants a year, as well as smaller ones — like gas stations, boilers at casinos and auto body shops that emit less than 100 or 250 tons a year — in areas where national air standards haven’t been met. More than 77 tribes in the country are in those areas, according to the EPA.

The new rule lays out requirements for those sources and also requires that the smaller emissions sources register throughout Indian Country.

“You couldn’t get a permit to do dry cleaning or to do some sort of rock quarrying — take your pick, all kinds of things,” said Phil Baker-Shenk, an attorney who represents a handful of tribes on the matter. “You could not get a permit if you were in Indian Country, but if you stepped over the boundary, you could get one from the state.”

The permitting process that limits carbon monoxide, lead, nitrogen dioxide, particulate, ozone and sulfur dioxide emissions isn’t new, but the requirements weren’t applied consistently. While states had permitting authority, Indian Country was largely left out for decades. The process applies to all new and expanding industrial facilities.

The rule came in response to requests from tribes and from companies that were having trouble getting permits to operate on tribal reservations, said Laura McKelvey of the EPA’s air quality planning and standards office. She cited a petroleum company unable to get a permit on tribal lands and another company that took its plans for a biomass boiler to state, rather than reservation land, as an example of the complications.

Tribes like the Shakopee Mdewakanton Sioux Community in Minneapolis and others that run generators as a backup at casinos or in rural areas now can take advantage of increased power generation that can be used to lower power bills if the utility company offers a buyback program, for example.

The EPA says the rules fill an important regulatory gap in the country’s air program that not only serves to foster economic development in Indian Country but protects the health of tribal members and gives the public an opportunity to weigh in on proposed permits. By requiring existing sources to register, the EPA can get a better handle on how much pollution is being emitted into the air from tribal lands.

Before the rule was finalized, companies looking to build major facilities or expand them in non-attainment areas had to seek a revision to a state plan that could take up to three years, but McCabe said few, if any, took that route.

“That was a large part of the advantage we saw to this rule, and the reason it was important to do it, because it provides certainty in time,” McCabe said.

The rule also provides a way for tribes to begin controlling pollutants within their boundaries. Any tribe can submit an application to the EPA to oversee permitting through a tribal implementation plan or stick with a federal plan.

A few tribes have been administering programs that cover smaller emissions sources, the EPA said.

The St. Regis Mohawk Tribe in New York has a tribal implementation plan that includes provisions for minor sources, and for major sources that volunteer to limit emissions to qualify as a minor source. The Gila River Indian Community south of Phoenix has a similar program that includes regulation of minor sources.